Playing the jerk to encourage dispute resolution

Posted Saturday, January 22nd, 2011 by Gregory Forman
Filed under Guardians Ad Litem, Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

Sometimes a guardian ad litem can assist resolution of a custody dispute by doing things that initially make the parents unhappy.  This won’t render the guardian popular but it will render the guardian effective.

This approach helped me resolve a 2 ½ year custody dispute earlier this week.  Immediately upon my appointment I did a preliminary investigation, which alleviated fitness concerns the parties had raised and led to an agreement for joint custody.  The parties had operated under that temporary joint custody agreement for over two years but, despite negotiation, the parties would not consummate a final custody agreement.   Meanwhile, both my investigation and the case remained in legal limbo.  Neither party was paying their attorney (one parent had a pro bono attorney) and there appeared to be little leverage to get the parties to finalize their resolution.

So I decided to be the heavy.  After giving the parties 1 ½ years to formalize an agreement they had allegedly reached in June 2009, I filed a motion for fees and to compel the parties’ cooperation in my investigation.  As expected, when informed that failure to settle custody would entail my resuming my investigation–greatly increasing my fees, and causing one party substantially greater attorney’s fees–and further inconvenienced by having to show up with their attorneys to court, they settled issues of child custody and guardian fees, absolving me of further duties in the case.  Both attorneys hugged me after the hearing, relieved that my motion for fees had led to settlement.

On numerous occasions–whether I have been the mediator, the guardian, or the attorney for one party–it has been clear that the parties are close to settling but need some catalyst to finalize that resolution.  Sometimes in these situations the threat of incurring further fees or the threat of further intrusiveness from the family court system is the only leverage a guardian can apply.  While a desire to appear accommodating is human, sometimes a confrontational approach can ultimately benefit everyone involved.

The only leverage I had as the guardian was the leverage of invading these parents’ privacy and making them pay my fees.  This was sufficient.   Perhaps it was unorthodox but it was also effective.  The anxiety of appearing the jerk by filing a motion that made me appear merely greedy was ultimately outweighed by the pleasure of being hugged by their attorneys.  Much like a judge who threatens the parties with some horrible result if they don’t settle, sometime we can do great courtesy to litigants but “playing the jerk” to encourage settlement.

One thought on Playing the jerk to encourage dispute resolution

  1. MJ Goodwin says:

    I disagree that it made you look greedy. Your time is valuable and you should be paid for it. You are a capitalist, like it or not. I like that you were able to compel the settlement, which is almost always in the best interest of the children as compared with a contested trial. But don’t say it made you look greedy. It made you look smart. If you don’t value your time, nobody else will, either.

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